Citation Nr: 0729600
Decision Date: 09/20/07 Archive Date: 10/01/07
DOCKET NO. 04-34 729 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an increased rating for osteoarthritis of the
right knee with history of sinovitis, currently evaluated as
10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty from February 1962 to July
1966 The record also reveals that the veteran had prior
active service and that he had served a total of over 17
years and five months when he retired from active duty due to
disability in July 1966.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an April 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina.
The veteran failed to report to a scheduled video conference
hearing in September 2005. Currently there are no
outstanding hearing requests.
Pursuant to a motion and the Board's granting thereof, this
case has been advanced on the Board's docket under 38
U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran seeks an increased rating for his service-
connected right knee disability. The Board notes that in an
August 2007 Informal Hearing Presentation, the veteran's
representative questioned the age of the most recent VA
medical examination of the veteran's right knee (September
2004), as well as the adequacy of that examination. The
veteran's representative requested that the veteran be given
a new VA examination of the right knee.
In September 2004, subsequent to the most recent VA
examination of the right knee, the veteran stated that he was
waiting for an MRI of the right knee and that he had an
upcoming appointment with VA orthopedics for treatment of his
right knee on October 28, 2004. Copies of these VA medical
records have not been obtained. This case must be remanded
in order that these VA records may be obtained and included
in the veteran's claims file. See 38 C.F.R. § 3.159(c)(2)
(2007).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the notice requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) apply to all five elements of a
service connection claim, including the degree of disability
and the effective date of an award. In the present appeal,
the veteran was provided with notice of what type of
information and evidence was needed to substantiate his claim
for an increased rating, but he was not provided with notice
of the type of evidence necessary to establish an effective
date. As this question is involved in the present appeal,
this case must be remanded for proper notice under
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that informs
the veteran that an effective date for the award of benefits
will be assigned if an increased rating is awarded, and also
includes an explanation as to the type of evidence that is
needed to establish an effective date.
Accordingly, the case is REMANDED for the following action:
1. Send the veteran a notice letter
which meets the requirements as outlined
in Dingess.
2. The RO should request copies of all
of the veteran's VA treatment records for
the right knee, including any examination
reports, inpatient records, outpatient
records , X-ray reports, and MRI reports,
dated from September 2003 to present.
3. When the above actions have been
accomplished, the RO should arrange for a
VA orthopedic examination of the
veteran's right knee. All indicated
tests and studies, including X-rays, and
range of motion studies in degrees, with
consideration of objective manifestations
of pain, should be performed.
The examiner should provide a description
of the degree of any
instability/subluxation present in the
right knee (i.e. whether it is slight,
moderate or severe).
The extent of any incoordination,
weakened movement and excess fatigability
on use should be described. The examiner
should be requested to identify any
objective evidence of pain and all
functional loss due to pain. The
examiner should specifically indicate the
range of motion performed on the right
knee without pain and the range of motion
of the right knee accompanied by pain.
The examiner should also express an
opinion concerning whether there would be
additional limits on functional ability
of the right knee on repeated use or
during flare-ups, and, if feasible,
express this in terms of additional
degrees of limitation of motion on
repeated use or during flare-ups. If
this is not feasible, the examiner should
so state.
The rationale for all opinions expressed
should be explained. The claims file
should be made available to the examiner
for proper review of the medical history,
and the examination report is to reflect
whether such a review of the claims file
was made.
4. After the above actions have been
accomplished, the RO should undertake any
other indicated development and re-
adjudicate the veteran's claim, to
include consideration of DeLuca v. Brown,
8 Vet. App. 202 (1995). If the benefit
sought on appeal is not granted to the
veteran's satisfaction, the RO should
issue a supplemental statement of the
case and afford the veteran and his
representative the requisite opportunity
to respond before the claims folder is
returned to the Board for further
appellate action.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
K. Osborne
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).